MediaQMI inc. v. Kamel

MediaQMI inc. v. Kamel
Collection
Supreme Court Judgments
Date
2021-05-28
Neutral citation
2021 SCC 23
Report
[2021] 1 SCR 899
Case number
38755
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899
Appeal Heard: November 12, 2020 Judgment Rendered: May 28, 2021 Docket: 38755
Between:
MediaQMI inc. Appellant
and
Magdi Kamel and Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal Respondents
- and -
Fédération professionnelle des journalistes du Québec, Canadian Broadcasting Corporation, La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association Interveners
Official English Translation
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 73)
Joint Dissenting Reasons: (paras. 74 to 143)
Côté J. (Abella, Moldaver, Karakatsanis and Brown JJ. concurring)
Wagner C.J. and Kasirer J. (Rowe and Martin JJ. concurring)
MediaQMI inc. Appellant
v.
Magdi Kamel and
Centre intégré universitaire de santé et de
services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal Respondents
and
Fédération professionnelle des journalistes du Québec,
Canadian Broadcasting Corporation,
La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association Interveners
Indexed as: MediaQMI inc. v. Kamel
2021 SCC 23
File No.: 38755.
2020: November 12; 2021: May 28.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal of quebec
Civil procedure — Openness of court proceedings — Right to access court record — Discontinuance — Retrieval of exhibits — Public body bringing action against former manager alleging misappropriation of public funds — Newspaper publishing company filing motion for access to sealed exhibits in court record — Court authorizing retrieval of exhibits because of discontinuance filed by public body before motion heard — Whether Superior Court judge was obliged to decide application for access to court record before authorizing retrieval of exhibits — Code of Civil Procedure, CQLR, c. C‑25.01, arts. 11, 108.
On October 6, 2016, the Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (“CIUSSS”) brought a legal action against a former manager, alleging misappropriation of public funds. The action was accompanied by an application for a Norwich order to obtain the identity of the holder of the four bank accounts to which the money had allegedly been diverted. On October 7, 2016, the Superior Court made the Norwich order and ordered that the entire record be sealed, including the four exhibits filed by the CIUSSS in support of its allegations. On March 29, 2017, MediaQMI, a newspaper publishing company, filed a motion to unseal based on art. 11 of the Code of Civil Procedure (“C.C.P.”) and s. 23 of the Charter of human rights and freedoms (“Quebec Charter”) in order to have access to the court record, including the exhibits that might be in it. The hearing of the motion, scheduled for April 5, 2017, was postponed to April 25, 2017. In the meantime, on April 19, 2017, the CIUSSS discontinued its legal action. It tried to retrieve the exhibits it had filed, but the staff of the court office could not find them. When the motion was heard on April 25, the CIUSSS made an oral request to retrieve the exhibits filed in the court record. MediaQMI opposed that request.
The Superior Court ordered that the court record be unsealed based on the test set out in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, finding that the evidence was insufficient to depart from the principle of open court proceedings. However, it granted the request to retrieve the exhibits made by the CIUSSS, in accordance with art. 108 C.C.P., because of the discontinuance that had terminated the proceeding. The day after the judgment was rendered, the CIUSSS retrieved its exhibits. The Court of Appeal dismissed MediaQMI’s appeal from the conclusion relating to the retrieval of exhibits.
Held (Wagner C.J. and Rowe, Martin and Kasirer JJ. dissenting): The appeal should be dismissed.
Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: MediaQMI cannot obtain a copy of the exhibits that were in the Superior Court’s record at the time its motion was filed. The right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. Once the parties retrieve their exhibits at the end of a proceeding in accordance with art. 108 C.C.P., members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed from it.
Article 11 C.C.P., which sets out the principle of open proceedings, does not confer a specific right to access exhibits that were once part of court records. That provision gives access to a court record whose content is governed in part by art. 108 C.C.P. Thus, the retrieval of exhibits from a record in the circumstances described in art. 108 C.C.P., when an application to consult the record is pending, does not infringe a rule of public order; it simply constitutes the exercise of a right provided for in the Code of Civil Procedure. The position that the scope of the principle of open proceedings should be interpreted in light of the charters must be rejected. Whatever protection that principle may have under the charters, the legislature remains free to fix the scope of the principle in the rules it enacts, and it is not the role of the courts to do so in its place. In the civil law context, creating law remains the legislature’s prerogative. Accordingly, in the absence of a constitutional challenge, the rules clearly stated in the Code of Civil Procedure are what apply. Moreover, except where there is ambiguity that persists even though the contextual approach to interpretation has been applied, courts do not have to interpret statutes so as to make them consistent with the principles and values of the Canadian Charter of Rights and Freedoms . This approach also accords with the interpretative provisions of the Quebec Charter.
The new Code of Civil Procedure that came into force in 2016 sets out the general scheme relating to the public nature of civil justice in arts. 11 to 16 and establishes two distinct rights in art. 11: the right to attend court hearings wherever they are held and the right to have access to court records and entries in the registers of the courts. Article 108 C.C.P. makes explicit reference to that general scheme; this is clear both from the words used by the legislature and from the holistic reading of the Code of Civil Procedure called for by its preliminary provision and by s. 41.1 of Quebec’s Interpretation Act. It therefore seems to be beyond question that art. 108 C.C.P. concerns the content of the records contemplated in arts. 11 to 16 C.C.P., that is, the records that are subject to a court’s supervisory power and control. That provision thus governs the keeping, retrieval and preservation of the exhibits filed in the record to which art. 11 C.C.P. gives access.
The scope of art. 108 para. 2 C.C.P. cannot be limited on the basis of passages from parliamentary debates suggesting that the legislature’s objective was to reduce the costs associated with the judicial system. Arguments from parliamentary history cannot result in the refusal to apply a clear rule, as doing so would compromise the reader’s right to rely on the letter of the law interpreted in its context. Courts do not have to interpret or implement the objective underlying a legislative scheme or provision, but must rather interpret and apply the text through which the legislature seeks to achieve that objective.
In this case, the text of art. 108 para. 2 C.C.P. authorizes the parties to retrieve their exhibits by consent in the course of a proceeding, and requires them to retrieve their exhibits once the proceeding has ended. It reiterates, with some modifications, the two rules set out in arts. 83 and 331.9 of the former Code of Civil Procedure, which were incorporated when the general scheme for the communication and filing of exhibits was reformed. That 1994 reform was designed to encourage parties to exchange information with regard to their respective evidence and to communicate their exhibits to one another directly, without first filing them in the court record. It contemplated that exhibits would be filed and kept on the basis of usefulness and necessity. As the successor of that scheme, art. 108 C.C.P. revises and unifies the rules on the keeping, retrieval and preservation of the exhibits filed in court records. Insofar as it governs the content of those records, it has a direct impact on the information to which the public can have access under art. 11 C.C.P.
Article 11 C.C.P. gives the public the right to have access to court records, subject to exceptions for confidential information. This right applies during and after a proceeding. Even after the proceeding has ended, the exhibits can be consulted as long as they remain in the record, but once the parties retrieve them or the court clerk destroys them, they cease to be part of the record to which the public can have access. This conclusion is in keeping with the intention expressed by the legislature through the words of arts. 11 and 108 C.C.P., with the legislative objectives underlying those provisions, with the general scheme of the Code of Civil Procedure and with civil law principles of interpretation. It also avoids giving the principle that civil justice is public set out in art. 11 C.C.P. a scope that might distort that principle, just as it avoids undermining other important objectives of the Code of Civil Procedure, such as the prevention and resolution of disputes. The objective of facilitating the resolution of disputes would surely be undermined if parties who wished to come to an agreement after taking a matter to court could not bring the documents they had filed with the court back into the private sphere.
Because arts. 11 and 108 C.C.P. do not give rise to any judicial discretion, the test from Dagenais and Mentuck should not be applied in this case. That test establishes that the discretion to make an order limiting the openness of proceedings must be exercised within the boundaries set by the Canadian Charter , having regard to rights and interests that pull in opposite directions. But where the law fixes the scope of the principle of open proceedings without conferring any discretion on judges, there is no reason to seek a correct balance between competing rights and interests that is within the boundaries set by the Canadian Charter .
In this case, MediaQMI’s right under art. 11 C.C.P. to have access to court records was never compromised. This was because the sealing order that had kept the record confidential until then came to an end when the Superior Court’s judgment was rendered. MediaQMI could have consulted the exhibits in issue if it had applied for access to the record during the time when the exhibits were available, since no conservatory measure had been sought by the parties. It did not do so. Only the terms of access to the court record and the content of that record changed between the filing of the motion to unseal and the retrieval of the exhibits. However, that situation was beyond the reach of art. 11 because it fell within art. 108 C.C.P. The fact that MediaQMI filed its motion under art. 11 C.C.P. prior to the CIUSSS’s discontinuance is not determinative and did not give it any acquired right to argue that motion. Nor did it give MediaQMI any right to require that the content of the court record remain unchanged until the motion was decided.
The legal consequence that art. 213 C.C.P. attaches to a discontinuance is the termination of the proceeding. Yet the termination of the proceeding entitles the parties to retrieve their exhibits in accordance with art. 108 C.C.P. In this case, if MediaQMI wanted to prevent the exercise of that power, it had to contest the discontinuance extinguishing the proceeding. It did not do so. There was therefore nothing that prohibited the CIUSSS from retrieving its exhibits.
Per Wagner C.J. and Rowe, Martin and Kasirer JJ. (dissenting): The appeal should be allowed. The case should be remanded to the Superior Court so that it can decide the application for access to the exhibits on the basis of the analytical framework established in Dagenais and Mentuck, which was affirmed for civil proceedings in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 52, and make the orders it considers necessary.
The parties’ control over the course of their case is a guiding principle set out in art. 19 C.C.P. This principle extends to the parties’ right to agree at any stage of the proceeding to settle their dispute or otherwise terminate the proceeding (para. 3). It does not allow them to override a judge’s discretion to ensure compliance with the rule of public order arising from the principle of open proceedings, nor does it allow them to exercise their powers at the expense of the existing and legitimate interests of third persons in seeking the application of that rule. The fact is that when parties decide to have recourse to the civil justice system, which is a public service, they do so knowing that members of the public may exercise their fundamental right to information about court proceedings. The private resolution of a dispute alone cannot ipso facto supplant the principle of open proceedings when invoked in accordance with procedural rules while a proceeding is still under way. This is all the more true in a case in which a judge issued an order limiting the principle of open court proceedings as soon as the legal action was filed, as in this case.
The fundamental principle of open court proceedings, a hallmark of a free and democratic society, is affirmed in art. 11 C.C.P., which provides that anyone may attend court hearings and have access to court records. The public, and in particular the news media, have the interest required to seek the application of this principle. The legislature provides for two specific exceptions to this fundamental principle: first, where the law provides for in camera proceedings (art. 15 C.C.P.) or restricts access to court records (art. 16 C.C.P.), which is notably the case in family matters; second, by giving the court a discretion to make an exception to the fundamental principle of open proceedings if, in its opinion, public order or the protection of substantial and legitimate interests so requires (art. 12 C.C.P.). A court seized of an application to limit the openness of court proceedings must exercise its discretion in accordance with the analytical framework developed in Dagenais, Mentuck and Sierra Club, even if the application is unopposed.
The rules on discontinuance flow from the principle that the parties control the course of their case (art. 19 para. 3 C.C.P.). To be set up against the other parties, the unilateral discontinuance need only be notified to those parties in accordance with art. 213 C.C.P. However, the principle that the parties control the course of their case is subject to a qualification, developed and consistently applied by the courts: a discontinuance may not prejudice the rights of the other parties or of third persons, including the right to have an application filed prior to the discontinuance decided. Because discontinuance constitutes a voluntary renunciation of a right or claim, it affects only the rights of the renouncing party, that is, the party that discontinues proceedings or waives a right or claim. A discontinuance may therefore be valid yet ineffective against the rights of third persons. It follows that the purpose or effect of a party’s discontinuance cannot be to avoid a suit already brought against it.
If the discontinuance of a proceeding cannot be relied on at the expense of third persons’ existing legitimate interests or contrary to the rules of public order, then parties cannot avail themselves of art. 108 para. 2 C.C.P. in order to remove exhibits from the record after an application has been made under art. 11 C.C.P. The control that the parties have over the course of their case must be exercised in compliance with the principles of civil procedure (art. 19 C.C.P.). The parties cannot displace a rule of public order, even by mutual consent. Applying the principle that the parties control the course of their case as if it were an end in itself would be contrary to Quebec jurisprudence and to the general scheme of the Code of Civil Procedure. It would also conflict with the well‑established principle that the Code’s provisions must be interpreted in harmony with the Quebec Charter and the general principles of law. Therefore, the principle that the parties control the course of the case could not adversely affect MediaQMI’s existing and legitimate interests in seeking the application of the rule of public order requiring open court proceedings.
From the moment MediaQMI applied to unseal the record and access the exhibits, a new proceeding began, and it went beyond the strictly private interests of the parties to the principal litigation. The discontinuance filed following the application brought under art. 11 C.C.P. could not defeat that new proceeding, which was separate from the principal litigation and related to the proper functioning of the judicial institution, whose legitimacy depends on its openness and in part on media scrutiny. MediaQMI was thus seeking to play its role as a surrogate for the public and to inform readers of what was taking place in the courts, a crucial role in a context where it was alleged that fraud had been committed within a public body responsible for ensuring the proper functioning of regional health institutions. The court had to exercise the discretion conferred on it by art. 12 C.C.P. However, the discontinuance would have produced its full effects if MediaQMI had filed its application after the CIUSSS’s discontinuance and had sought access to the exhibits when they were no longer in the record. Its appeal would have failed on that basis unless it challenged the constitutionality of art. 108 C.C.P.
Cases Cited
By Côté J.
Referred to: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; Cie Immobilière Viger Ltée v. Giguère Inc., [1977] 2 S.C.R. 67; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1997] 2 S.C.R. 299; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R. 865; Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144; R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 59 O.R. (3d) 18; Hong v. Lavy, 2019 NSSC 271, 46 C.P.C. (8th) 327; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; R. v. Oakes, [1986] 1 S.C.R. 103; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Classic Fabrics Corp. v. B. Rawe GMBH & Co., 2001 CanLII 7221; L’Espérance v. Atkins, [1956] B.R. 62; 175809 Canada inc. v. 2740478 Canada inc., 2000 CanLII 9254; Droit de la famille — 092038, 2009 QCCS 3822, [2009] R.D.F. 646.
By Wagner C.J. and Kasirer J. (dissenting)
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Charland v. Lessard, 2015 QCCA 14; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800; Homans v. Gestion Paroi inc., 2017 QCCA 480; J.G. v. Nadeau, 2016 QCCA 167; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; B. (B.) v. Québec (Procureur général), [1998] R.J.Q. 317; Rosei v. Benesty, 2020 QCCS 1795; Marcovitz v. Bruker, 2005 QCCA 835, [2005] R.J.Q. 2482, rev’d on another point 2007 SCC 54, [2007] 3 S.C.R. 607; Sirius Services conseils en technologie de l’information inc. v. Boisvert, 2017 QCCA 518; Horic v. Nepveu, 2016 QCCS 3921; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); 3834310 Canada Inc. v. R.C., 2004 CanLII 4122; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Georgiadis v. Angelopoulos, 2008 QCCS 6890; Classic Fabrics Corp. v. B. Rawe GMBH & Co., 2001 CanLII 7221; 175809 Canada inc. v. 2740478 Canada inc., 2000 CanLII 9254; L’Espérance v. Atkins, [1956] B.R. 62; Graham‑Albulet v. Albulet, [1977] C.A. 323; Barzelex Inc. v. M.E.C.S. International Inc. (1989), 29 Q.A.C. 63; Constructions Panthéon inc. v. Clinique Altermed inc., 2015 QCCA 50; Taran Furs (Mtl) inc. v. Tuac, local 501, 2005 CanLII 11669; 7006098 Canada inc. v. Sobeys Canada inc., 2020 QCCS 897; Berenbaum v. Berenbaum Reichson, 2014 QCCA 1630; Entreprises de béton Fern Leclerc Ltée v. Bourassa, [1990] R.D.J. 558; Droit de la famille — 092038, 2009 QCCS 3822, [2009] R.D.F. 646; Wetherall v. Macdonald (1903), 9 R. de J. 381; 9163‑5771 Québec inc. v. Bonifier inc., 2017 QCCA 1316; Ditomene v. Syndicat des enseignants du Cégep de l’Outaouais (SECO), 2012 QCCA 1296; Byer v. Québec (Inspecteur général des institutions financières), [2000] R.L. 615; Fers et métaux américains, s.e.c. v. Picard, 2013 QCCA 2255; Banque Commerciale Italienne du Canada v. Magas Development Corp., [1992] R.D.I. 246; Portnoff (Syndic de), [2000] R.J.Q. 1290.
Statutes and Regulations Cited
Act to modify the organization and governance of the health and social services network, in particular by abolishing the regional agencies, CQLR, c. O‑7.2, s. 38.
An Act to amend the Code of Civil Procedure, Bill 24, 3rd Sess., 34th Leg., Quebec, 1994.
Canadian Charter of Rights and Freedoms , ss. 1 , 2(b) , 11(d) .
Charter of human rights and freedoms, CQLR, c. C‑12, ss. 3, 9.1, 23, 51, 53.
Civil Code of Québec, art. 33.
Code de procédure civile (France), 1806, art. 87.
Code of Civil Procedure, S.Q. 1897, c. 48, art. 16.
Code of Civil Procedure, CQLR, c. C‑25, arts. 13, 47, 83 [am. 1994, c. 28, s. 3], 331.7, 331.9 [ad. idem, s. 20].
Code of Civil Procedure, CQLR, c. C‑25.01, preliminary provision, arts. 1 to 7, 8 to 28, 49, 107, 108, 205, 206, 213, 214, 220, 246 to 252.
Interpretation Act, CQLR, c. I‑16, art. 41.1.
Loi sur la procédure civile du canton de Genève, 1837, s. 84.
Nouveau Code de procédure civile (France), arts. 394, 395, 396.
Regulation of the Court of Québec, CQLR, c. C‑25, r. 4, ss. 3, 4, 18, 19.
Rules of practice of the Superior Court of Québec in civil matters, R.R.Q. 1981, c. C‑25, r. 8, rr. 2, 3.
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APPEAL from a judgment of the Quebec Court of Appeal (Marcotte and Schrager JJ.A. and Samson J. (ad hoc)), 2019 QCCA 814, [2019] AZ‑51434213, [2019] J.Q. no 3707 (QL), 2019 CarswellQue 3871 (WL Can.), affirming a decision of Gagnon J., 2017 QCCS 4691, [2017] AZ‑51434213, [2017] J.Q. no 14219 (QL), 2017 CarswellQue 9231 (WL Can.). Appeal dismissed, Wagner C.J. and Rowe, Martin and Kasirer JJ. dissenting.
Mathieu Quenneville and Marc‑André Nadon, for the appellant.
Jonathan Pierre‑Étienne and Antoun Al‑Saoub, for the respondent Magdi Kamel.
Dominique Vallières, for the respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal.
Mark Bantey, for the intervener Fédération professionnelle des journalistes du Québec.
Christian Leblanc, for the intervener the Canadian Broadcasting Corporation, La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association.
English version of the judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. delivered by
Côté J. —
I. Overview
[1] The importance of the principle of open court proceedings is no longer a matter of controversy today. It will readily be agreed that, as one early author elegantly stated, justice is [translation] “a work of light and not of darkness”: J. Frain du Tremblay, Essais sur l’idée du parfait magistrat où l’on fait voir une partie des obligations des Juges (1701), at pp. 139‑40. This is not in question here. But however important a principle may be, it is not without limits. This appeal calls upon us to clarify the limits of the openness of court proceedings. What must be determined, in essence, is how far the aspiration for transparency in the judicial process should lead and at what point secrecy can prevail.
[2] In Quebec, the Code of Civil Procedure, CQLR, c. C‑25.01 (“C.C.P.”), gives members of the public the right to have access to court records: art. 11 C.C.P.[1] No prior authorization is required: anyone can examine the content of such records. The Code also contains a provision dealing with the retrieval of exhibits filed in a court record: art. 108 C.C.P. In the course of a proceeding, the parties are authorized to retrieve their exhibits if all of them consent; once the proceeding has ended, they are obliged to do so, otherwise the exhibits may be destroyed by the court clerk after one year. The question at the centre of this appeal is whether art. 11 C.C.P. allows members of the public to consult exhibits that have been retrieved by the parties in accordance with art. 108 C.C.P. In my view, the right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. This means that once the parties retrieve their exhibits at the end of a proceeding, members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed from it.
II. Background
[3] On October 6, 2016, the respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (“CIUSSS”) instituted court proceedings against one of its former managers, the respondent Magdi Kamel. The originating application alleged misappropriation of funds in the amount of $410,266 and sought the repayment of that sum as well as $100,000 in damages. It was accompanied by an application for a Norwich order to obtain the identity of the holder of the four bank accounts to which that sum had allegedly been diverted between April 1, 2009 and March 31, 2015. The CIUSSS filed four exhibits in support of its applications, including an expert forensic accounting report produced by PwC. On October 7, 2016, the Superior Court made the Norwich order and ordered that the entire record be sealed.
[4] Seizures before judgment were carried out at Mr. Kamel’s residences on October 17 and November 22, 2016. The Journal de Montréal, a newspaper published by the appellant, MediaQMI, devoted two articles to the seizures on October 31 and December 13, 2016. Wishing to find out the details of the court proceedings, MediaQMI filed its [translation] “Motion to unseal” on March 29, 2017 in order to have access to the court record and the exhibits that might be in it. In that motion based on art. 11 C.C.P. and s. 23 of the Charter of human rights and freedoms, CQLR, c. C‑12 (“Quebec Charter”), MediaQMI sought only a single conclusion:
[translation] TERMINATE any order whose purpose is to restrict the access of the public and the Applicant to the Court record for file 500‑17‑095861‑160.
[5] The hearing of the motion, scheduled for April 5, 2017, was postponed to April 25, 2017. In the meantime, the CIUSSS discontinued its originating application. It filed a notice of discontinuance on April 19, 2017 and, over the next few days, tried to retrieve the four exhibits filed in support of its application. However, the staff of the court office could not find the record.
[6] On April 21, 2017, Mr. Kamel applied to the Superior Court for authorization to withdraw the originating application from the court record or, in the alternative, for an order preventing the public from having access to it. The CIUSSS did not oppose Mr. Kamel’s application, but MediaQMI indicated its opposition on April 24, 2017.
[7] On April 25, 2017, Gagnon J. heard MediaQMI’s motion in camera. At the hearing, counsel for the CIUSSS made an oral request to retrieve the exhibits filed in the court record, emphasizing that the expert forensic accounting report produced by PwC was private. MediaQMI opposed that request to retrieve the exhibits. Gagnon J. took the case under advisement after extending the sealing order until his judgment was rendered. No other conservatory measure was sought by any of the parties.
III. Judicial History
A. Quebec Superior Court, 2017 QCCS 4691 (Gagnon J.)
[8] Gagnon J. rendered his decision on July 20, 2017. After noting that MediaQMI was neither a party to the litigation nor, strictly speaking, an intervenor, he decided the motion to unseal on the basis of the test set out in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 (“Dagenais/Mentuck test”). Finding that the evidence was insufficient to depart from the principle of open court proceedings, he observed that the mere desire to avoid embarrassment for Mr. Kamel and negative publicity for the CIUSSS did not justify keeping the record confidential. He therefore ordered that the record be unsealed.
[9] With regard to the oral request to retrieve the exhibits, Gagnon J. stated that the rights of journalists and the media do not override the application of the ordinary rules of the Code of Civil Procedure. He added that the efficiency of civil procedure is based in part on out‑of‑court settlements and discontinuances. As soon as a proceeding ends, he wrote, the parties have complete freedom to retrieve all exhibits from the record and to shield them from public scrutiny; indeed, art. 108 C.C.P. requires them to do so. Because the proceeding in this case had been terminated by a discontinuance, Gagnon J. authorized the CIUSSS to remove its exhibits from the court record. Counsel for the CIUSSS retrieved them the day after the judgment was rendered, on July 21, 2017. After reading MediaQMI’s notice of appeal, he sent its counsel an email written [translation] “[w]ithout prejudice” in which he confirmed, “without any admission, that we are keeping a copy of the exhibits . . . until the appeal is decided or settled”: A.R., at p. 82.
B. Quebec Court of Appeal, 2019 QCCA 814 (Marcotte and Schrager JJ.A. and Samson J. (ad hoc))
[10] The three Quebec Court of Appeal judges wrote separate reasons to dispose of MediaQMI’s appeal from the conclusion relating to the retrieval of exhibits.
[11] Citing Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, Samson J. noted that Quebec courts may not create positive rules of civil procedure, much less rules that would be contrary to the Code of Civil Procedure. In his view, MediaQMI’s motion was ancillary to the litigation between Mr. Kamel and the CIUSSS. By terminating the proceeding, the discontinuance had also resulted in a loss of jurisdiction over that ancillary motion. Since the parties controlled the course of their case, the CIUSSS could retrieve its exhibits as soon as the discontinuance was filed. The Dagenais/Mentuck test did not apply, because that test presupposes a discretion that did not exist in this case. First, there was no longer any litigation between the parties; second, ar